Current reference: Due to the amendments to the Citizenship Act, dual citizenship is now possible, so the present case would no longer be decided in this way.
Lüneburg Higher Administrative Court, 03.05.2018, Ref. 13 LB 107/16
If an Iraqi wants to become a German citizen, they must naturalise like all other foreign citizens. The requirements for this are regulated in the Citizenship Act (StAG). In addition to various other requirements listed in the laws, proof of identity is always required. This cannot be read directly from § 10 I 1 StAG, for example. However, it is clear from this that the personal details are the basis for checking the other requirements. For example, it must be clear who the person is in order to check § 10 I 1 No. 5 StAG, i.e. whether the person has already committed a criminal offence. In addition, the general aim is to prevent a person from acting under several identities in everyday life. However, it is not always easy to prove one's identity. The national passport generally serves as proof. The documents listed in the Lower Saxony Implementing Provisions on Citizenship Law, for example, serve as a guideline:
- Certificate of residence for the persons named in the application,
- foreign passport or other documents to establish identity and proof of nationality,
- Proof of marital status, e.g. birth or parentage certificate, marriage certificate if applicable or notarised copy from the family register,
- handwritten curriculum vitae (only for persons over the age of 16); the curriculum vitae should contain a description of the applicant's personal and professional career,
- current photograph
- Proof of income and assets (e.g. certificate of earnings, tax assessment notices, pension notices, maintenance arrangements).
Ultimately, however, it depends on the judgement of the authorities as to whether they accept the documents as proof. They understandably do not accept forged documents as a matter of principle.
Iraqis are only released from Iraqi citizenship if they have German citizenship
Another requirement is the renunciation or loss of the previous nationality (Section 10 I 1 No. 4 StAG). Under Iraqi law, however, Iraqi citizenship can only be renounced if another citizenship has already been acquired. For this reason, Iraqis are often naturalised even though they then temporarily hold both German and Iraqi citizenship. However, they must prove that they are already in the process of renouncing their Iraqi citizenship and are obliged to renounce it as soon as possible.
In the following judgement, the Lüneburg Higher Administrative Court (OVG Lüneburg) clarifies that forged documents and documents based on forged documents do not serve as proof of identity. It also specifies the conditions under which multiple nationality is temporarily acceptable for Iraqis.
Facts of the case discussed here
In the present case, the parties are disputing the existence of a claim to naturalisation. The plaintiffs are a married couple, the defendant is a foreigners authority.
The couple, originally from Iraq, travelled to Germany in 1996 and were initially recognised as refugees. They were granted a residence permit. In 2004, however, their refugee status is revoked and it is established that there are no grounds for deportation. The couple then apply for a settlement permit, which they receive in October 2005 after presenting their Iraqi national passports. Finally, they also apply for naturalisation in the same year. In 2006, they provide proof of their language skills and submit Iraqi passports, identity cards and the marriage contract.
Naturalisation applicants initially present falsified ID cards
However, the Iraqi identity cards turn out to be forged, although this is not due to any fault on the part of the couple. Criminal proceedings initiated are discontinued. They also present forged Iraqi citizenship documents, but again the forgeries are not the fault of the couple.
They then presented newly issued passports, the authenticity of which was confirmed by the Iraqi embassy. Nevertheless, the defendant did not consider the identity to be sufficiently clarified and demanded the additional presentation of identity and citizenship documents. The couple explained that it was impossible for them to present these documents as they would have to travel to a war zone in Iraq to apply for them. According to the couple, it is not possible to issue a power of attorney at the Iraqi embassy, as this would require the presentation of a nationality card. However, this should first be applied for with the power of attorney.
Naturalisation authority requires further proof of identity
The application for naturalisation is then rejected. The reason given was that, on the one hand, the presentation of the identity and citizenship cards was required as proof of identity. On the other hand, their presentation is necessary under Iraqi law for the release from Iraqi citizenship. If the documents cannot be presented in Germany, naturalisation in Iraq cannot be assumed, although this is a prerequisite under Section 10 I 1 No. 4 StAG. Failure to submit the documents therefore constitutes a breach of the duty to cooperate in accordance with Section 27 StAG, meaning that the application for naturalisation will be rejected.
Naturalisation applicants file suit with the administrative court
The couple brought an action against this before the VG Oldenburg. They again claim that they did everything in their power to obtain the documents. Furthermore, they cannot be accused of presenting the forged documents, as these are due to the inadequate Iraqi document system. Their identity was proven by the presentation of genuine Iraqi passports. It was impossible to obtain the citizenship documents.
The defendant defends its refusal with the arguments presented above. The plaintiffs have not submitted all documents, although they are able to do so without travelling to Iraq with a power of attorney. Neither their identity had been sufficiently clarified, nor was it apparent that they had been released from their Iraqi citizenship.
Oldenburg Administrative Court dismisses the lawsuit
The Oldenburg Administrative Court dismissed the case in 2015. It considers the requirement of Section 10 I 1 No. 4 StAG not to be fulfilled. In the court's opinion, the plaintiffs' release from Iraqi citizenship is not evident, as they are unable to present the documents required for this under Iraqi law. Obtaining the documents was also reasonable.
The couple appeal against this judgement to the OVG Lüneburg. They argue as before and once again explicitly point out the impossibility of obtaining the documents. Obtaining them by power of attorney is not possible without a nationality card and the Foreign Office also advises against travelling to Iraq, as there is still a war going on there. Obtaining the documents is therefore unreasonable, which is why other federal states have also naturalised Iraqis with the acceptance of multiple nationality.
They therefore request that the judgement of the Oldenburg Administrative Court be set aside and that the defendant be obliged to naturalise.
The defendant requests that the appeal be dismissed and defends the judgement of the VG Oldenburg with his previous arguments. He continues to consider the procurement of the required documents to be reasonable.
Appeal decision of the Lüneburg Higher Administrative Court
The OVG Lüneburg dismisses the appeal as unfounded. It cannot recognise any entitlement of the couple to naturalisation.
On the one hand, the court considers that the identity of the plaintiffs has not been sufficiently clarified, and on the other hand, it cannot recognise the release from Iraqi citizenship.
It first states that the clarification of identity is an unwritten requirement for naturalisation in accordance with Section 10 I 1 StAG. This means that the applicant's identity is the basis for checking the other requirements. It consists of personal details, i.e. title, name, name, place and date of birth, as well as marital and family status.
The documents submitted do not comply with the implementing provisions on nationality law
The Lower Saxony implementation regulations on citizenship law specify which documents are required as proof. In addition to the residence certificate, this is generally the foreign passport and proof of marital status. If these documents are missing, the identity of the naturalisation applicant is still considered to be in need of clarification.
The plaintiffs have either not submitted such documents or they are not accepted by the court. Although the plaintiffs had in principle submitted sufficient passports, the OVG Lüneburg did not accept them as proof. It has serious doubts about the accuracy of the content of the passports, as they were issued on the basis of forged identity and citizenship documents. According to Iraqi law, the presentation of these ID cards is necessary for the issuance of the passport. However, the couple's passports were proven to be forged. The court therefore did not accept the presentation of the ID cards themselves as proof of identity.
Similarly, residence permits issued in the past alone do not serve as proof of identity, as they cannot dispel doubts.
The court therefore concludes that the identity of the spouses has not been clarified. It also points out that naturalisation applicants must prove their identity themselves, even if this is unreasonable due to the situation in their country of origin.
In addition, it also considers the requirement of Section 10 I 1 No. 4 StAG not to be fulfilled. According to this, the applicant for naturalisation must have given up or lost their previous nationality.
The court first explains a special feature for Iraqi applicants. Iraqi law stipulates that Iraqis are only released from their nationality once they have acquired another nationality. In practice, therefore, Iraqis are initially naturalised despite their continued Iraqi citizenship. However, they are required to renounce this as quickly as possible and must also prove that they have already taken the necessary steps. This means that multiple nationality can be temporarily accepted. The court states that the steps required to renounce Iraqi citizenship include submitting the application, giving fingerprints, presenting the Iraqi identity and citizenship card and the passport. It also refers to the website of the Iraqi embassy.
The requirements for the release from Iraqi citizenship are also not met
However, in the opinion of the court, the couple did not take such steps. In fact, they lacked all documents, as they were unable to present their identity and citizenship cards. This meant that temporary acceptance of multiple nationality was not possible. The requirements of Section 10 I 1 No. 4 StAG are not met.
No exception to this can be made in accordance with § 12 I 1, 2 no. 3 Alt. 2 StAG, according to which permanent multiple nationality can be accepted in cases where it is impossible or unreasonable to give up the previous nationality.
There was no impossibility due to either Iraqi law or the political situation. The same applies to unreasonableness. In the past, it had been possible for the couple to obtain documents with a power of attorney. It is not clear to the court why this should no longer be possible.
It thus comes to the conclusion that the requirements for a claim under Section 10I 1 StAG are not met and that the renunciation of Iraqi citizenship cannot be waived by way of exception. Consequently, it dismisses the appeal.
Source: OVG Lüneburg
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